THE NATIVE AMERICAN RIGHTS FUND INDIAN EDUCATION LEGAL SUPPORT PROJECT. Tribalizing Indian Education

THE NATIVE AMERICAN RIGHTS FUND INDIAN EDUCATION LEGAL SUPPORT PROJECT Tribalizing Indian Education An Historical Analysis of Requests for Direct Federal Funding for Tribal Education Departments for Fiscal Years 1989-2004 September 2003

THE NATIVE AMERICAN RIGHTS FUND INDIAN EDUCATION LEGAL SUPPORT PROJECT Tribalizing Indian Education An Historical Analysis of Requests for Direct Federal Funding for Tribal Education Departments for Fiscal Years 1989-2004 Prepared by Melody L. McCoy Staff Attorney Native American Rights Fund 1506 Broadway Boulder, CO 80302 Telephone (303) 447-8760 Fax (303) 443-7776 www.narf.org September 2003

THE NATIVE AMERICAN RIGHTS FUND INDIAN EDUCATION LEGAL SUPPORT PROJECT An Historical Analysis of Requests for Direct Federal Funding for Tribal Education Departments for Fiscal Years 1989-2004 INTRODUCTION These materials are an historical analysis of requests for direct federal funding for Tribal Education Departments for Fiscal Years 1989 through 2004. There are two separate authorizations by Congress for direct federal funding for Tribal Education Departments. In 1988 Congress authorized funding for Tribal Education Departments through the Bureau of Indian Affairs. In 1994 Congress authorized funding for Tribal Education Departments through the U.S. Department of Education. Both authorizations were retained in the No Child Left Behind Act of 2001. These materials show the consistent support for Tribal Education Department funding under both of these authorizations by tribes and national Indian organizations. Despite this support, the agencies and the President have rarely requested the funding and Congress has never appropriated the funding. These materials are intended to be a general resource for tribal, state, and federal officials, schools, and other interested persons. For further information and reference about Indian education law and policy and the rights and roles of tribal governments in education, please see the first six sets of materials under this project dated October 1993, October 1994, October 1997, October 1998, October 1999, and October 2000. None of these materials is intended to be legal advice for any particular tribe. Tribes should consult their legal counsel for specific advice about the existence and scope of their sovereign authority in education. The Native American Rights Fund s (NARF) Indian Education Legal Support Project, Tribalizing Indian Education, is supported by a grant from the W.K. Kellogg Foundation. Special thanks for their research assistance on this publication are extended to the National Indian Law Library, NARF 2003 Summer Law Clerks Daniel Arnold and Heather Clinton, the National Indian Education Association, and the National Congress of American Indians. 2003 Native American Rights Fund i

THE NATIVE AMERICAN RIGHTS FUND INDIAN EDUCATION LEGAL SUPPORT PROJECT An Historical Analysis of Requests for Direct Federal Funding for Tribal Education Departments for Fiscal Years 1989-2004 TABLE OF CONTENTS Page Section 1: Executive Summary of the Project.......................... 1 Section 2: Goals of the Project -Tribalizing Indian Education............. 3 Section 3: The Authorizations for Direct Federal Funding for Tribal Education Departments........................................... 5 A. Through the Bureau of Indian Affairs.................. 5 1. The Language of the Original Authorization....... 5 2. The History of the Original Authorization......... 7 3. The Language of the Current Version in No Child Left Behind................................... 10 4. The History of the Current Version............. 12 B. Through the Department of Education................ 14 1. The Language of the Original Authorization...... 14 2. The History of the Original Authorization........ 16 3. The Language of the Current Version in No Child Left Behind................................... 19 4. The History of the Current Version............. 20 ii

Section 4: The Requests for Tribal Education Departments Direct Federal Funding.............................................. 25 A. Overview....................................... 25 1. The Federal Appropriations Process............ 25 2. Appropriations Requests for TEDs............. 27 B. Requests for Funding through the Bureau of Indian Affairs 27 FYs 1989-1992............................ 27 FY 1993.................................. 28 FY 1994.................................. 29 FY 1995.................................. 30 FY 1996.................................. 30 FY 1997.................................. 31 FY 1998.................................. 31 FY 1999.................................. 32 FY 2000.................................. 32 FY 2001.................................. 32 FY 2002.................................. 33 FY 2003.................................. 33 FY 2004.................................. 33 C. Requests for Funding through the Department of Education 34 FY 1997.................................. 34 FY 1998.................................. 34 FY 1999.................................. 34 FY 2000.................................. 35 FY 2001.................................. 35 FY 2002.................................. 36 FY 2003.................................. 36 FY 2004.................................. 36 D. Tables Showing Major Organizational Requests Table 1 - Requests for funding through the Bureau of Indian Affairs.............................. 37 Table 2 - Requests for funding through the Department of Education............................... 38 iii

The Native American Rights Fund NATIVE AMERICAN RIGHTS FUND INDIAN EDUCATION LEGAL SUPPORT PROJECT EXECUTIVE SUMMARY The Native American Rights Fund (NARF) is the national legal defense fund for American Indian and Alaska Native tribes. Founded in 1970, NARF concentrates on bringing cases and reforming laws that are of major importance to a great many Native people. NARF consistently has been at the forefront of issues and developments in Indian law in areas such as Indian treaty rights to land and water, Native religious freedom rights, and the rights of tribes as sovereign governments including tribal rights in education. The NARF Indian Education Legal Support Project - Tribalizing Indian Education 1 S U M M A R Y NARF historically has represented Indian clients on a variety of education issues. Since 1987, NARF has represented the Rosebud Sioux Tribe of South Dakota in establishing a precedent-setting tribal education code and implementing that code through a tribal education department. As a result of its success with the Rosebud Sioux Tribe, NARF started a new project that has been funded primarily by the Carnegie Corporation of New York and the W.K. Kellogg Foundation. The project advances Native American education by emphasizing the legal rights of tribes to control the formal education of tribal members in all types of schools federal, state, and tribal. NARF seeks to "tribalize" formal education through developing tribal education laws and reforming state and national Indian education legislation. Tribal education laws are essential to effective tribal control of education, yet few tribes have such laws. Tribal laws are essential to defining each tribe's education rights and goals. Tribal laws are essential to delineating the forum and process for establishing tribal and non-tribal government-to-government relationships and working agreements on common education issues and goals. The Need is Evident but Affirmative Steps Must Be Taken Indian tribes are sovereign governments just as their state and federal counterparts. Many federal reports and some federal and state laws have focused on Indian education problems. Some reports and laws have pointed out the need to increase the role of tribal governments to address the problems. But instead of requiring active tribal government involvement, most federal and state education programs and processes circumvent tribal governments and maintain non- Indian federal and state governmental control over the intent, goals, approaches, funding, staffing, and curriculum for Indian education. And there are no effective programs to establish tribal education codes or operate tribal education departments. The three sovereign governments in this country have a major stake in Indian education. Common sense dictates that tribal governments have the most at stake because it involves their children who are their most precious resource and their future. Some progress has been made because of Indian education programs, Indian parent committees, Indian school boards, and tribally-controlled colleges. Some progress has been made through a measured amount of tribal control and input under laws that include the Indian Education Act of 1988, the Indian Self-Determination and Education Assistance Act of 1975, the Elementary and Secondary Education Act of 1965, and the Impact Aid Laws of 1950. Conclusion More direct tribal control of Indian education is needed, and more direct control is the next logical step for many tribes. Federal reports and recommendations call for partnerships between tribes and state schools, tribal approval of state education plans, and tribal education codes, plans, and standards. Tribal control of education is a fact of life in a small number of tribes and more tribal communities want to assume this control. But tribes have been denied this opportunity and responsibility and have been "out of the loop" for decision-making and accountability. For Indian education to succeed, federal and state governments must allow tribes the opportunity to regain control and make decisions, be accountable, and help shape their children's future and their own future as tribes. NARF intends to ensure that tribes gain the legal control over education that they deserve as sovereign governments and that they must have for Indian education success. 1

NOTES 2

NATIVE AMERICAN RIGHTS FUND INDIAN EDUCATION LEGAL SUPPORT PROJECT An Historical Analysis of Requests for Direct Federal Funding for Tribal Education Departments for Fiscal Years 1989-2004 GOALS OF THE PROJECT - TRIBALIZING INDIAN EDUCATION 1. To promote sovereign tribal rights and responsibilities in education, including the government-to-government interactions of tribal governments with the federal and state governments; 2. To increase the number of tribal governments that assess their education situation, develop education goals, and exercise sovereign rights through developing and implementing tribal education laws, tribal education standards, and tribal education plans; 2 G O A L S 3. To increase the number of tribal governments that take more education responsibility, control, and accountability; 4. To assist the federal and state governments in increasing their government-togovernment education work with tribal governments and in monitoring that increase within their federal and state agencies and federal and state funded education programs; and, 5. To assist tribes in reforming federal and state Indian education laws and policies and in passing new laws and adopting new policies which enable tribal decision-making, ensure access to resources, and enhance other improvements in Indian education. 3

NOTES 4

THE NATIVE AMERICAN RIGHTS FUND INDIAN EDUCATION LEGAL SUPPORT PROJECT An Historical Analysis of Requests for Direct Federal Funding for Tribal Education Departments for Fiscal Years 1989-2004 The Authorizations for Direct Federal Funding for Tribal Education Departments A. Through the Bureau of Indian Affairs The original authorization for direct federal funding for Tribal Education Departments (TEDs) through the Bureau of Indian Affairs (BIA) within the Department of the Interior was contained in the Augustus F. Hawkins Robert T. Stafford Elementary and Secondary School Improvement Amendments of 1988, Pub. L. No. 100-297, 102 Stat. 130 (1988). The Augustus F. Hawkins Robert T. Stafford Elementary and Secondary School Improvement Amendments of 1988 was a six year reauthorization of programs and appropriations under the Elementary and Secondary Education Act (ESEA) of 1965, Pub. L. No. 89-10, 79 Stat. 27 (1965). The ESEA is the principal law by which states and public schools get federal funding and other assistance for elementary and secondary education. Major ESEA programs include Title I, Teacher Training, Limited English Proficiency, and Impact Aid. 1. The Language of the Original Authorization The original authorization provided that (a) Subject to the availability of appropriations, the Secretary shall provide grants and technical assistance to tribes for the development and operation of tribal departments of education for the purpose of planning and coordinating all educational programs of the tribe. 3 A U T H O R I Z A T I O N S (b) Grants provided under this section shall-- (1) be based on applications from the governing body of the tribe, (2) reflect factors such as geographic and population diversity, (3) facilitate tribal control in all matters relating to the education of Indian children on Indian reservations and on former Indian reservations in Oklahoma, 5

(c) Priorities (4) provide for the development of coordinated educational programs on Indian reservations (including all preschool, elementary, secondary, and higher or vocational educational programs funded by tribal, Federal, or other sources) by encouraging tribal administrative support of all Bureau funded educational programs as well as encouraging tribal cooperation and coordination with all educational programs receiving financial support from State agencies, other Federal agencies, or private entities, (5) provide for the development and enforcement of tribal educational codes, including tribal educational policies and tribal standards applicable to curriculum, personnel, students, facilities, and support programs, and (6) otherwise comply with regulations for grants under section 450h(a) of this title that are in effect on the date application for such grants are made. (1) In approving and funding applications for grants under this section, the Secretary shall give priority to any application that-- (A) includes assurances from the majority of Bureau funded schools located within the boundaries of the reservation of the applicant that the tribal department of education to be funded under this section will provide coordinating services and technical assistance to all of such schools, including (but not limited to) the submission to each applicable agency of a unified application for funding for all of such schools which provides that-- (i) no administrative costs other than those attributable to the individual programs of such schools will be associated with the unified application, and (ii) the distribution of all funds received under the unified application will be equal to the amount of funds provided by the applicable agency to which each of such schools is entitled under law, (B) includes assurances from the tribal governing body that the tribal department of education funded under this section will administer all contracts or grants (except those covered by the other provisions of this title and the Tribally Controlled Community College Assistance Act of 1978) for education programs administered by the tribe and will coordinate all of the programs to the greatest extent possible, (C) includes assurances for the monitoring and auditing by or through the tribal department of education of all education programs for which funds are provided by contract or grant to ensure that the programs meet the requirements of law, and 6

(D) provides a plan and schedule for-- (i) the assumption over the term of the grant by the tribal department of education of all assets and functions of the Bureau agency office associated with the tribe, insofar as those responsibilities relate to education, and (ii) the termination by the Bureau of such operations and office at the time of such assumption, but when mutually agreeable between the tribal governing body and the Assistant Secretary, the period in which such assumption is to occur may be modified, reduced, or extended after the initial year of the grant. (2) Subject to the availability of appropriated funds, grants provided under this section shall be provided for a period of 3 years and the grant may, if performance by the grantee is satisfactory to the Secretary, be renewed for additional 3-year terms. (d) Terms, conditions, or requirements The Secretary shall not impose any terms, conditions, or requirements on the provision of grants under this section that are not specified in this section. (e) Authorization of appropriations There are authorized to be appropriated for each fiscal year such sums as may be necessary to carry out the provisions of this section. Title V, Section 5119, Pub. L. No. 100-297, originally codified at 25 U.S.C. 2022b. 2. The History of the Original Authorization The House of Representatives has reported that this authorization for appropriations for funding TEDs through the Department of the Interior was the result of an amendment by the Senate to the House of Representatives bill that became the Augustus F. Hawkins - Robert T. Stafford Elementary and Secondary School Improvement Amendments of 1988. H. R. Conf. Rep. No. 100-567 (1988). The House of Representatives agreed to the authorization if the funding priority factors were added. Id. A more specific history of this authorization provision is as follows. On January 6, 1987, Representative Hawkins (D-CA), introduced H. R. 5, a bill to Improve Elementary and Secondary Education. 133 Cong. Rec. E59-02 (1987). H. R. 5 was referred to the House of Representatives Committee on Education and Labor. 133 Cong. Rec. H101-01 (1987). 7

On April 22, 1987, the House Committee on Education and Labor ordered H.R. 5, now entitled the School Improvement Act of 1987, to be reported. 133 Cong. Rec. D00000-03 (1987). On May 21, 1987, Representative Kildee (D-MI), proposed, among other things, adding an appropriations authorization provision that would fund, through the Department of Education, TEDs. 133 Cong. Rec. H3817-02 (1987). In support of his proposed amendment, Congressman Kildee stated that it Recognizes the need to encourage and strengthen tribal divisions of education. This is particularly important due to recent congressional actions which have placed growing emphasis on tribal involvement in the education of Indian students. Many tribes have already taken the first steps to develop these divisions. However, more needs to be done in this area. Id. That same day, the House of Representatives passed H.R. 5, as amended. 133 Cong. Rec. D00000-03 (1987). 1 On December 1, 1987, Senator Deconcini (D-NM), proposed the Indian Education Amendments of 1987 to S. 373, a bill entitled the Robert T. Stafford Elementary and Secondary Education Improvement Act of 1987. 133 Cong. Rec. S16880-02 (1987). The Amendments contained a section authorizing appropriations to fund TEDs through the Department of the Interior. Id. In support of the Indian Education Amendments, Senator Daschle (D-SD), stated that In addition to a number of other important provisions, this title also contains a provision for special projects that could enable South Dakota s Pine Ridge Reservation to operate its own tribal department of education and assume full responsibility for the education of its children in a more coordinated fashion. 133 Cong. Rec. S16802-02 (1987). 1 Interestingly, Representative Kildee s original proposed amendments to H.R. 5 would have set aside ten per cent (10%) of annual Indian Education Improvement grant funding administered through the Department of Education, also known as Demonstration Projects, forteds. 133 Cong. Rec. H3817-02 (1987). Such a provision was not part of S. 373 or of H.R. Res. 427. 134 Cong. Rec. H1488-02 (1988); 134 Cong. Rec. H1707-02 (1988). Ultimately, the House receded on this provision. 134 Cong. Rec. S4336-01 (1988). 8

The TED funding authorization provision became Section 11118 of S. 373. 133 Cong. Rec. S17008-01 (1987). That same day, H.R. 5 was passed by the Senate as amended by S. 373, as amended. 133 Cong. Rec. S17008-01 (1987). On December 8, 1987, the House of Representatives received a message from the Senate announcing that the Senate insisted upon its amendment (S. 373) to H.R. 5, and requesting a conference with the House on the disagreeing versions of the two bills. 133 Cong. Rec. H11019-03 (1987). On February 9, 1988, the House disagreed to the Senate amendment to H.R. 5 (S. 373), but agreed to a conference on the two bills. 134 Cong. Rec. D84-02 91988). On April 13, 1988, the conferees recommended that the House recede from its disagreement to the amendment of the Senate and agree to the same with an amendment. 134 Cong. Rec. H1488-02 (1988). The conferees recommended entitling the bill the Augustus F. Hawkins - Robert T. Stafford Elementary and Secondary School Improvement Amendments. 134 Cong. Rec. H1488-02 (1988). Regarding TED funding, the conferees recommended keeping the Senate version which authorized appropriations through the Department of the Interior Id. On April 19, 1988, the House of Representatives, by H.R. Res. 427, added the priority factors for TED funding. 134 Cong. Rec. H1707-02 (1988). In support of the conferee recommendations and H.R. Res. 427, Congressman Richardson (D-NM), stated that he had Id. Worked to insure that all Indian tribes would be eligible to apply for grants to establish tribal departments of education to coordinate both Federal and tribal education programs, and to develop education standards and policies. The House of Representatives also made clear that, although TEDs would be encouraged to administer all federal Indian education program contracts and grants, this provision was not intended to be a requirement of a single education contract per tribe. 134 Cong. Rec. S4336-01 (1988). Also, tribal college funding was to be exempt from TED administration. Id. On April 20, 1988, Senator Daschle, speaking in favor of the conference agreement on the bills, stated that: The [compromise] bill would permit the establishment of a tribal department of education to oversee schools run by the BIA and by tribes. This provision will enable the Oglala Sioux at Pine Ridge to 9

actively plan and better coordinate all of its educational programs. It would further the concept of self-determination by insuring the maximum participation of the Oglala in determining their future educationally. 134 Cong. Rec. S4336-01 (1988). On April 28, 1988, with passage by the House of Representatives, H.R. 5, as amended by S. 373 and H.R. Res. 427, became Public Law 100-297, 102 Stat. 130. When signed by President Reagan, the Augustus F. Hawkins - Robert T. Stafford Elementary and Secondary School Improvements Amendments of 1988 became Public Law No. 100-297. 134 Cong. Rec. S5082-01 (1988). 3. The Language of the Current Version in No Child Left Behind The current authorization for direct federal funding for TEDs through the BIA is contained in the No Child Left Behind Act of 2001 (NCLB), Pub. L. No. 107-110, 115 Stat. 1425 (2001). The authorization provides that (a) In general Subject to the availability of appropriations, the Secretary shall make grants and provide technical assistance to tribes for the development and operation of tribal departments or divisions of education for the purpose of planning and coordinating all educational programs of the tribe. (b) Applications For a tribe to be eligible to receive a grant under this section, the governing body of the tribe shall submit an application to the Secretary at such time, in such manner, and containing such information as the Secretary may require. (c) Diversity The Secretary shall award grants under this section in a manner that fosters geographic and population diversity. (d) Use Tribes that receive grants under this section shall use the funds made available through the grants-- (1) to facilitate tribal control in all matters relating to the education of Indian children on reservations (and on former Indian reservations in Oklahoma); 10

(e) Priorities (2) to provide for the development of coordinated educational programs (including all preschool, elementary, secondary, and higher or vocational educational programs funded by tribal, Federal, or other sources) on reservations (and on former Indian reservations in Oklahoma) by encouraging tribal administrative support of all Bureau-funded educational programs as well as encouraging tribal cooperation and coordination with entities carrying out all educational programs receiving financial support from other Federal agencies, State agencies, or private entities; and (3) to provide for the development and enforcement of tribal educational codes, including tribal educational policies and tribal standards applicable to curriculum, personnel, students, facilities, and support programs. In making grants under this section, the Secretary shall give priority to any application that-- (1) includes (A) assurances that the applicant serves three or more separate Bureaufunded schools; and (B) assurances from the applicant that the tribal department of education to be funded under this section will provide coordinating services and technical assistance to all of such schools; (2) includes assurances that all education programs for which funds are provided by such a contract or grant will be monitored and audited, by or through the tribal department of education, to ensure that the programs meet the requirements of law; and (3) provides a plan and schedule that (A) provides for (i) the assumption, by the tribal department of education, of all assets and functions of the Bureau agency office associated with the tribe, to the extent the assets and functions relate to education; and (ii) the termination by the Bureau of such functions and office at the time of such assumption; and (B) provides that the assumption shall occur over the term of the grant made under this section, except that, when mutually agreeable to the tribal governing body and the Assistant Secretary, the period in which such assumption is to occur may be modified, reduced, or extended after the initial year of the grant. (f) Time period of grant Subject to the availability of appropriated funds, a grant provided under this section shall be provided for a period of 3 years. If the performance of the grant recipient is satisfactory to the Secretary, the grant may be renewed for additional 3-year terms. 11

(g) Terms, conditions, or requirements A tribe that receives a grant under this section shall comply with regulations relating to grants made under section 450(a) of this title that are in effect on the date that the tribal governing body submits the application for the grant under subsection (b) of this section. The Secretary shall not impose any terms, conditions, or requirements on the provision of grants under this section that are not specified in this section. (h) Authorization of appropriations There are authorized to be appropriated to carry out this section $2,000,000. Title X, Section 1140, Pub. L. No. 107-110, currently codified at 25 U.S.C. 2020. 4. The History of the Current Version The No Child Left Behind Act of 2001 (NCLB), Pub. L. No. 107-110, 115 Stat. 1425, (2001) is a six-year reauthorization of programs and appropriations under the ESEA. NCLB significantly reforms the ESEA by requiring greater accountability of schools for teacher quality and results of testing and other assessments; increasing local control of schools and their flexibility in using federal funding; providing new information to and options for parents; and, emphasizing scientifically based research instruction and other methods in schooling. On January 30, 2001, the House of Representatives stated that among the executive communications it had received was [a] communication from the President of the United States, transmitting a report for nationwide education reform entitled, No Child Left Behind. 147 Cong. Rec. H103-03, at H104 (2001). This communication, H. Doc. No. 107-34 (2001), was referred to the House of Representatives Committee on Education and the Workforce. 147 Cong. Rec. H103-03, at H104 (2001). On March 22, 2001, Representative Boehner (R-OH) introduced President Bush s education plan as H. R. 1, the No Child Left Behind Act of 2001. 147 Cong. Rec. E437-01 (2001). H. R. 1. would be a comprehensive reauthorization of the ESEA, reflecting President Bush s efforts to close the achievement gap between disadvantaged students and their peers and to work with States to push America s schools to be the best in the world. Id. H. R. 1 was referred to the House of Representatives Committee on Education and the Workforce. 147 Cong. Rec. D260-02, at D261 (2001). On March 28, 2001, Senator Jeffords (I-VT), introduced in the Senate S. 1, 107 th Cong. (2001), entitled the Better Education for Students and Teachers Act. 147 Cong. Rec. D277-02 (2001). S. 1 was an original bill to extend for seven years programs and activities 12

under the ESEA. S. Rep. No. 107-7, at 1 (2001). S. 1 was based on a principle put forth by President Bush entitled, No Child Left Behind. 147 Cong. Rec. S4461-03, at S4469 (2001). S. 1 had been under consideration by the Senate Committee on Health, Education, Labor and Pensions. 147 Cong. Rec. D174-01 (2001); 147 Cong. Rec. D162-02, at D163 (2001); 147 Cong. Rec. E254-01, at E254 (2001); 147 Cong Rec. E276-01, at E276 (2001). On March 28, 2001, the Committee reported favorably on S. 1. S. Rep. No. 107-7, at 1 (2001). Consideration of S. 1 by the full Senate began on May 3, 2001. 147 Cong. Rec. S4187-06 (2001); 147 Cong. Rec. S4272-02 (2001). On May 9, 2001, while S. 1 was under consideration by the full Senate, Senator Campbell (R-CO) submitted an amendment that he intended to be proposed to S. 1. 147 Cong. Rec. S4617-01, at S4675 (2001). Section 1138 of this amendment retained the authorization for direct federal funding for TEDs through the BIA. Id. at S4689. Section 1138 would make some technical changes to the format of the original authorization, and it would make one major substantive change. 147 Cong. Rec. S4617-01, at S4689 (2001). In the provisions governing the priorities that the Secretary of the Interior would give to funding applicants, Section 1138 added as a new priority that the applicant serve 3 or more separate BIA funded schools. Id. Section 1138 would authorize to be appropriated $2,000,000 for fiscal year 2002 and such sums as may be necessary for each of fiscal years 2003, 2004, 2005, and 2006. 147 Cong. Rec. S4617-01, at S4689 (2001). On May 9, 2001, the House Committee on Education and the Workforce ordered H. R. 1 reported as amended. 147 Cong. Rec. D419-01, at D420 (2001). On May 14, 2001, the House Committee on Education and the Workforce submitted its report, H. Rep. No. 107-63(I) (2001), on H. R. 1. 147 Cong. Rec. D439-01. Section 1140 of H. R. 1 retained the authorization for direct federal funding for TEDs through the BIA. H. R. Rep. No. 107-63(I), at 152-153. Unlike S. 1., H. R. 1 would have retained the authorization in its original form and substance. H. R. Rep. No. 107-63(I), at 152-153. Like S. 1, H. R. 1 would authorize TED funding at appropriations of $2,000,000 for fiscal year 2002 and such sums as may be necessary for each of the fiscal years 2003, 2004, 2005, and 2006. Id. On May 17, 2001, H. R. 1 was declared under consideration by the whole House of Representatives. 147 Cong. Rec. H2310-02 (2001); 147 Cong. Rec. H2298-02 (2001). On May 23, 2001, H. R. 1 passed the whole House. 147 Cong. Rec. H4121-01 (2001). On June 14, 2001, the Senate passed H.R. 1 as amended by S. 1. 147 Cong. Rec. S6672-03 (2001). On July 18, 2001, the House of Representatives disagreed to the Senate amendment to H. R. 1, but agreed to a conference on the matter. 147 Cong. Rec. D725-01 (2001). 13

On December 12, 2001, the Committee of Conference submitted its report, H. R. Conf. Rep. No. 107-334 (2001) on H. R. 1. 147 Cong. Rec. H9773-02 (2001). The Committee of Conference recommended generally that the House of Representatives recede from its disagreement to the amendment of the Senate to H. R. 1, and agree to the same with an amendment. 147 Cong. Rec. H9773-02 (2001). Section 1140 of the amended version of H. R. 1 submitted by the Committee of Conference contained the Senate version of the authorization for funding TEDs through the BIA. 147 Cong. Rec. H9773-02, at H9937 (2001). This was the version that added as a new priority to be considered by the Secretary of the Interior that the funding applicants serve 3 or more separate BIA funded schools. Id. On December 13, 2001, the House of Representatives agreed to the Conference Report on H. R. 1, thereby passing H. R. 1. 147 Cong. Rec. D1249-01 (2001); 147 Cong. Rec. 1254-01 (2001). The Senate proceeded to debate the Conference Report on December 17, 2001. 147 Cong. Rec. S13322-03 (2001). On December 18, 2001, the Senate passed H. R. 1. 147 Cong. Rec. D1265-03 (2001); 147 Cong. Rec. H10193-01 (2001). On January 8, 2002, President Bush signed H. R. 1 into law as the No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425. 148 Cong. Rec. S344-02 (2002). B. Through the Department of Education 1. The Language of the Original Authorization The original authorization for direct funding for TEDs through the Department of Education was contained in the Improving America s Schools Act of 1994, Pub. L. No. 103-382, 108 Stat. 3518 (1994). The authorization provided that (a) In general The Secretary may make grants to Indian tribes, and tribal organizations approved by Indian tribes, to plan and develop a centralized tribal administrative entity to-- (1) coordinate all education programs operated by the tribe or within the territorial jurisdiction of the tribe; (2) develop education codes for schools within the territorial jurisdiction of the tribe; (3) provide support services and technical assistance to schools serving children of the tribe; and (4) perform child-find screening services for the preschool-aged children of the tribe to (A) ensure placement in appropriate educational facilities; and 14

(b) Period of grant (B) coordinate the provision of any needed special services for conditions such as disabilities and English language skill deficiencies. Each grant under this section may be awarded for a period of not more than 3 years, except that such grant may be renewed upon the termination of the initial period of the grant if the grant recipient demonstrates to the satisfaction of the Secretary that renewing the grant for an additional 3-year period is necessary to carry out the objectives of the grant described in subsection (c)(2)(a) of this section. (c) Application for grant (1) In general Each Indian tribe and tribal organization desiring a grant under this section shall submit an application to the Secretary at such time, in such manner, containing such information, and consistent with such criteria, as the Secretary may prescribe in regulations. (2) Contents Each application described in paragraph (1) shall contain (A) a statement describing the activities to be conducted, and the objectives to be achieved, under the grant; and (B) a description of the method to be used for evaluating the effectiveness of the activities for which assistance is sought and determining whether such objectives are achieved. (3) Approval The Secretary may approve an application submitted by a tribe or tribal organization pursuant to this section only if the Secretary is satisfied that such application, including any documentation submitted with the application (A) demonstrates that the applicant has consulted with other education entities, if any, within the territorial jurisdiction of the applicant who will be affected by the activities to be conducted under the grant; (B) provides for consultation with such other education entities in the operation and evaluation of the activities conducted under the grant; and (C) demonstrates that there will be adequate resources provided under this section or from other sources to complete the activities for which assistance is sought, except that the availability of such other resources shall not be a basis for disapproval of such application. (d) Restriction A tribe may not receive funds under this section if such tribe receives funds under section 2022b of Title 25. 15

(e) Authorization of appropriations There are authorized to be appropriated to the Department of Education $3,000,000 for each of the fiscal years 1995 through 1999 to carry out this section. Title IX, Section 9125, Pub. L. No. 103-382, originally codified at 20 U.S.C. 7835. 2. The History of the Original Authorization On January 5, 1993, Representative Kildee (D-MI) introduced in the House of Representatives H.R. 6, a bill to extend for six years the authorizations for programs and appropriations under the ESEA. 139 Cong. Rec. H82-01 (1993); 139 Cong. Rec. E5-01 (1993). H.R. 6 was referred to the House of Representatives Committee on Education and Labor. 139 Cong. Rec. H82-01 (1993). On October 4, 1993, Senator Kennedy (D-MA) introduced in the Senate S. 1513, a bill to reauthorize the ESEA entitled Improving America s Schools Act of 1993. 139 Cong. Rec. S12928-07 (1993); 139 Cong. Rec. D1078-02 (1993). As introduced, S. 1513 did not contain any new provisions regarding tribal education departments. S. 1513 was referred to the Senate Committee on Labor and Human Resources. 139 Cong. Rec. S12928-06 (1993). On February 1, 1994, the House of Representatives Subcommittee on Elementary, Secondary, and Vocational Education approved for full Committee action H.R. 6 as amended, the ESEA Amendments of 1993. 140 Cong. Rec. D62-01 (1994). On February 8, 1994, the House of Representatives Committee on Education and Labor ordered H.R. 6 reported as amended. 140 Cong. Rec. D95-01 (1994). On February 16, 1994, the House of Representatives Committee on Education and Labor filed its report, H.R. Rep. No. 103-425 (1994), on H.R. 6 as amended, now entitled the Improving America s Schools Act of 1994. 140 Cong. Rec. H559-01 (1994); 140 Cong. Rec. D132-01 (1994). As reported, H.R. 6 did not contain any new provisions regarding TEDs. On February 23, 1994, the House of Representatives Committee on Rules submitted a resolution, H. Res. 366, providing for the consideration of H.R. 6. The Committee on Rules also submitted a privileged report, H.R. Rep. No. 103-426, to accompany H. Res. 366. 140 Cong. Rec. H651-02 (1994); 140 Cong. Rec. H678-04 (1994); 140 Cong. Rec. D141-01; 140 Cong. Rec. H798-03 (1994). On March 24, 1995, the House of Representatives passed H.R. 6 as amended. 140 Cong. Rec. D329-01 (1994). 16

On April 19, 1994, the Senate received a message from the House of Representatives that the House had passed H.R. 6 and requested the concurrence of the Senate therein. 140 Cong. Rec. S4462-02 (1994). The Senate referred H.R. 6 to the Senate Committee on Labor and Human Resources. 140 Cong. Rec. S4463-01 (1994). On May 4, 1994, the Senate Committee on Indian Affairs held hearings on the Indian education provisions of S. 1513 and H.R. 6. 140 Cong. Rec. D482-02 (1994). Among those testifying at the hearings was Phil Baird, President of the National Indian Education Association (NIEA). Mr. Baird stated that: Tribes need federal funding to help develop tribal departments of education which can engage in developmental work and place them in better positions to negotiate or enter into agreements with state and local governments as equal partners in our nation s school reform efforts. Testimony of the National Indian Education Association before the Senate Committee on Indian Affairs on the Reauthorization of Elementary and Secondary Education Programs, 1994 WL 232500 (F.D.C.H. May 4, 1994). Mr. Baird went on to state that NIEA proposed a new program within the Indian Education Act of 1972. Under the new program, grants through the Department of Education would be authorized for tribes Id. to develop education codes, to coordinate education programs, [and] to provide technical and support services to schools serving Indian children...this grant program is not included in H.R. 6, and we ask that it be adopted as part of the Senate bill. On June 15, 1994, the Senate Committee on Labor and Human Resources ordered S. 1513 as amended favorably reported. 140 Cong. Rec. D672-01 (1994). On June 24, 1994, the Senate Committee on Labor and Human Resources submitted its report, S. Rep. No. 103-292, on S. 1513. 140 Cong. Rec. S7638-01 (1994); 140 Cong. Rec. D731-01 (1994). On July 15, 1994, the Senate Committee on Indian Affairs submitted its report, S. Rep. No. 103-314 (1994), on S. 1513. The Committee on Indian Affairs recommended a new program under the authority of the Indian Education Act of 1972, Pub. L. No. 92-318, 86 Stat. 326. Under the new program, the Secretary of Education would be authorized $3 million to fund TEDs to develop tribal education codes, engage in education planning, and coordinate education programs on Indian reservations. S. Rep. No. 103-314 (1994). 17

On July 27, 1994, the Senate began consideration of S. 1513 as amended, now entitled the Improving America s Schools Act of 1994. 140 Cong. Rec. D885-02 (1994). Section 6206 of the version under consideration contained the Senate Committee on Indian Affairs recommended new TED funding authorization through the Department of Education. 140 Cong. Rec. S9763-02 (1994). On August 2, 1994, the Senate passed H.R. 6 as amended by S. 1513 as amended, and requested a conference with the House of Representatives on the two versions of H.R. 6. 140 Cong. Rec. S10281-01 (1994); 140 Cong. Rec. D919-02 (1994). H.R. 6 as amended contained Section 6206, the new Department of Education TED funding authorization. 140 Cong. Rec. S10719-01 (1994). On August 9, 1994, the House of Representatives received a message from the Senate that the Senate had passed H.R. 6 as amended and requesting the concurrence of the House in the same. 140 Cong. Rec. H7204-05 (1994). The message also announced that the Senate insisted upon its amendment to H.R. 6 and requested a conference with the House on the disagreeing versions of H.R. 6. Id. On September 20, 1994, the House of Representatives disagreed to the Senate amendments to H.R. 6, but agreed to go to conference on the matter. 140 Cong. Rec. D1085-01 (1994). The Senate received this message from the House on September 21, 1994. 140 Cong. Rec. S13093-08 (1994). On September 27, 1994, the conferees agreed to file a conference report on the differences between the Senate and House-passed versions of H.R. 6. 140 Cong. Rec. D1140-01 (1994). On September 28, 1994, the Committee of Conference submitted its report, H.R. Conf. Rep. No. 103-761 (1994), on H.R. 6. 140 Cong. Rec. H10006-05 (1994); 140 Cong. Rec. D1153-01 (1994). The Committee of Conference recommended generally that the House of Representatives recede from its disagreement to the amendment of the Senate to H.R. 6, and agree to the same with an amendment. 140 Cong. Rec. H10009-01 (1994). Regarding TED funding, the Committee of Conference recommended keeping in the Senate version of H.R. 6, which authorized $3 million for TEDs through the Department of Education in addition to the authorization through the Department of the Interior. 140 Cong. Rec. H10009-01 (1994). The House of Representatives receded with an amendment prohibiting the same tribe from receiving TED funding under both the Department of Education and the Department of the Interior authorizations. Id. On September 30, 1994, the House of Representatives, by H. Res. No. 556, considered and agreed to the report of the Committee of Conference regarding H.R. 6. 140 Cong. Rec. H10382-03 (1994); 140 Cong. Rec. D1174-01 (1994). That same date, the Senate received a message from the House of Representatives that the House had agreed to the report of the Committee of Conference regarding H.R. 6. 140 Cong. Rec. S13851-02 (1994). 18

On October 5, 1994, the Senate agreed to the Conference Report on H.R. 6. 140 Cong. Rec. D1210-02 (1994). On October 6, 1994, the House of Representatives received a message from the Senate that the Senate agrees to the report of the Committee of Conference on H.R. 6. 140 Cong. Rec. H11009-04 (1994). On November 29, 1994, the House of Representatives Committee on House Administration presented H.R. 6 to the President for his approval. 140 Cong. Rec. H11562-03 (1994). On November 29, 1994, President Clinton signed H. R. 6 into law as the Improving America s Schools Act of 1994, Pub. L. No. 103-382, 108 Stat. 5318 (1994). 140 Cong. Rec. D1257-01 (1994). 3. The Language of the Current Version in No Child Left Behind The current authorization for direct federal funding for TEDs through the Department of Education is contained in NCLB. The authorization provides that (a) In general The Secretary may make grants to Indian tribes, and tribal organizations approved by Indian tribes, to plan and develop a centralized tribal administrative entity to-- (1) coordinate all education programs operated by the tribe or within the territorial jurisdiction of the tribe; (2) develop education codes for schools within the territorial jurisdiction of the tribe; (3) provide support services and technical assistance to schools serving children of the tribe; and (4) perform child-find screening services for the preschool-aged children of the tribe to (A) ensure placement in appropriate educational facilities; and (B) coordinate the provision of any needed special services for conditions such as disabilities and English language skill deficiencies. (b) Period of grant Each grant awarded under this section may be awarded for a period of not more than 3 years. Such grant may be renewed upon the termination of the initial period of the grant if the grant recipient demonstrates to the satisfaction of the Secretary that renewing the grant for an additional 3-year period is necessary to carry out the objectives of the grant described in subsection (c)(2)(a) of this section. 19

(c) Application for grant (1) In general Each Indian tribe and tribal organization desiring a grant under this section shall submit an application to the Secretary at such time, in such manner, containing such information, and consistent with such criteria, as the Secretary may prescribe in regulations. (2) Contents Each application described in paragraph (1) shall contain (A) a statement describing the activities to be conducted, and the objectives to be achieved, under the grant; and (B) a description of the method to be used for evaluating the effectiveness of the activities for which assistance is sought and for determining whether such objectives are achieved. (3) Approval The Secretary may approve an application submitted by a tribe or tribal organization pursuant to this section only if the Secretary is satisfied that such application, including any documentation submitted with the application (A) demonstrates that the applicant has consulted with other education entities, if any, within the territorial jurisdiction of the applicant who will be affected by the activities to be conducted under the grant; (B) provides for consultation with such other education entities in the operation and evaluation of the activities conducted under the grant; and (C) demonstrates that there will be adequate resources provided under this section or from other sources to complete the activities for which assistance is sought, except that the availability of such other resources shall not be a basis for disapproval of such application. (d) Restriction A tribe may not receive funds under this section if such tribe receives funds under section 2024 of Title 25. Title VII, Section 7135, Pub. L. No. 107-110, currently codified at 20 U.S.C. 7455. 4. The History of the Current Version NCLB is a six-year reauthorization of programs and appropriations under the ESEA. NCLB significantly reforms the ESEA by requiring greater accountability of schools for teacher quality and results of testing and other assessments; increasing local control of schools and their flexibility in using federal funding; providing new information to and options for parents; and, emphasizing scientifically based research instruction and other methods in schooling. 20

On January 30, 2001, the House of Representatives stated that among the executive communications it had received was [a] communication from the President of the United States, transmitting a report for nationwide education reform entitled, No Child Left Behind. 147 Cong. Rec. H103-03, at H104 (2001). This communication, H. Doc. No. 107-34 (2001), was referred to the House of Representatives Committee on Education and the Workforce. 147 Cong. Rec. H103-03, at H104 (2001). On March 22, 2001, Representative Boehner (R-OH) introduced President Bush s education plan as H. R. 1, the No Child Left Behind Act of 2001. 147 Cong. Rec. E437-01 (2001). H. R. 1. would be a comprehensive reauthorization of the ESEA, reflecting President Bush s efforts to close the achievement gap between disadvantaged students and their peers and to work with States to push America s schools to be the best in the world. Id. H. R. 1 was referred to the House of Representatives Committee on Education and the Workforce. 147 Cong. Rec. D260-02, at D261 (2001). On March 28, 2001, Senator Jeffords (I-VT), introduced in the Senate S. 1, 107 th Cong. (2001), entitled the Better Education for Students and Teachers Act. 147 Cong. Rec. D277-02 (2001). S. 1 was an original bill to extend for seven years programs and activities under the ESEA. S. Rep. No. 107-7, at 1 (2001). S. 1 was based on a principle put forth by President Bush entitled, No Child Left Behind. 147 Cong. Rec. S4461-03, at S4469 (2001). S. 1 had been under consideration by the Senate Committee on Health, Education, Labor and Pensions. 147 Cong. Rec. D174-01 (2001); 147 Cong. Rec. D162-02, at D163 (2001); 147 Cong. Rec. E254-01, at E254 (2001); 147 Cong Rec. E276-01, at E276 (2001). On March 28, 2001, the Committee reported favorably on S. 1. S. Rep. No. 107-7, at 1 (2001). S. 1 would transfer programs authorized under Title IX of the ESEA to Title VII, and would rename the Title to be Indian, Native Hawaiian, and Alaska Native Education. S. Rep. No. 107-7, at 140 (2001). The Senate Committee on Health, Education, Labor and Pensions reported that Section 7125 of the new Title VII maintains current law provisions authorizing the Secretary [of Education] to make grants to Indian tribes and tribal organizations approved by Indian tribes to develop a centralized tribal administrative entity to coordinate education programs and related activities. S. Rep. No. 107-7, at 141 (2001). The Committee also reported that [a] funding level of $3 million is authorized for each of the fiscal years 2002 through 2008. Id. Consideration of S. 1 by the full Senate began on May 3, 2001. 147 Cong. Rec. S4187-06 (2001); 147 Cong. Rec. S4272-02 (2001). On May 9, 2001, the House Committee on Education and the Workforce ordered H. R. 1 reported as amended. 147 Cong. Rec. D419-01, at D420 (2001). On May 14, 2001, the House Committee on Education and the Workforce submitted its report, H. Rep. No. 107-63(I) (2001), on H. R. 1. 147 Cong. Rec. D439-01. 21